By Deborah Hopkins, November 14, 2018
Let’s say your agency is working on a remote project somewhere and there’s a cargo plane that comes every two weeks to drop off supplies.
One of your employees asks you if the agency will allow a family member to bring a chicken to the airport at the point of origination, so the chicken can be flown, along with the rest of the cargo, on the next plane in. When you ask why, the employee tells you that she has a religious belief that requires a chicken sacrifice every fourth Friday, that her work on the remote project will still be in progress during the next required sacrifice, and she has no access to chickens in this remote place.
What do you do?
Hopefully, before you say anything about how strange you might think that is, or before you laugh the request off, you realize that this a request for religious accommodation and that the employee may be entitled to her request.
Here’s what we know from the law. Title VII requires federal agencies to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden (undue hardship) on the agency’s operations. This means an agency may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Religion is broadly defined and includes all aspects of religious observance and practice, as well as beliefs – and not just the major world religions we might think of. According to 29 CFR§1605.1, a religion does not have to be practiced by an organized group and includes moral and ethical beliefs as to what is right and wrong that are sincerely held with strength of traditional religious views. It also includes beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that “seem illogical or unreasonable to others.” EEOC Compliance Manual, Section 12-I, A-1.
The employee requesting religious accommodation has to do the following:
- Demonstrate she has a bona fide religious belief or practice that conflicts with work requirement
- “Every fourth Friday I am required to make a chicken sacrifice, and I am scheduled to be working on this remote project next Friday, and no chickens are around for me to sacrifice.”
- Inform the agency of conflict
- The employee told the supervisor, and asked for a chicken to be allowed on the plane.
- Show that the work requirement would force complainant to abandon fundamental aspect of belief or practice.
- “These chicken sacrifices are a fundamental believe of my religion and if I don’t make this sacrifice I will be out of good standing with my faith.”
Now it’s on the agency to accommodate the request unless doing so would cause an undue hardship. The term undue hardship is not defined the same way in religious accommodation cases as it is in disability accommodation cases. When it comes to undue hardship in religion, we are looking at anything more than a de minimis burden.
The EEOC Compliance Manual § 12-I, C-6, gives us more detail:
To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information … [A]n employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers, because that would pose an undue hardship for the employer.” (emphasis added).
So let’s look at the request for the chicken to fly in on the cargo plane. Is it more than a de minimis burden for the chicken to ride in with the rest of the supplies, so the employee can perform her religious ritual on the day it’s required? Take another look at the undue hardship determination and then decide that for yourself. After all, this newsletter is a place for training information, not legal advice. Hopkins@FELTG.com